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Draft of August 17, 1995
2,600,000 Shares
ENERGY VENTURES, INC.
Common Stock
UNDERWRITING AGREEMENT
September ___, 1995
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
Energy Ventures, Inc., a Delaware corporation (the "Company"),
proposes, upon the terms and conditions set forth herein, to issue and sell to
the several underwriters named in Schedule I hereto (the "Underwriters") on
whose behalf you are acting as representatives (the "Representatives")
2,600,000 shares (the "Firm Shares") of common stock, par value $1.00 per share
(the "Common Stock"), of the Company. In addition, for the sole purpose of
covering overallotments in connection with the sale of the Firm Shares, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional 390,000 newly issued shares (the "Option Shares") of the Common
Stock. The Firm Shares and any Option Shares purchased pursuant to this
Underwriting Agreement (this "Agreement") are herein called the "Shares."
This is to confirm the agreement concerning the purchase of
the Shares from the Company by the Underwriters.
1. Representations, Warranties and Agreements of the
Company. The Company represents and warrants to, and agrees with, each
Underwriter that:
(a) A registration statement on Form S-3
(File No. 33-________) with respect to the Shares (i) has been prepared by the
Company in conformity with the requirements of
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the Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, (ii) has been filed with the
Commission under the Securities Act and (iii) either has become effective under
the Securities Act and is not proposed to be amended or is proposed to be
amended by amendment or post-effective amendment. If the Company does not
propose to amend such Registration Statement and if any post-effective
amendment to such registration statement has been filed with the Commission
prior to the execution and delivery of this Agreement, the most recent such
amendment has been declared effective by the Commission. Copies of such
registration statement as amended to date have been delivered by the Company to
you. For purposes of this Agreement, "Effective Time" means the date and the
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or amendments thereof,
before it became effective under the Securities Act and any prospectus filed
with the Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Registration Statement"
means such registration statement, as amended at the Effective Time, including
any documents incorporated by reference therein and, if the Effective Date is
on or before the date of this Agreement, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations ("Rule 424(b)") in accordance with Section 5(a) hereof and deemed
to be a part thereof as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Rules and Regulations; and "Prospectus" means the form of
prospectus relating to the Shares, as first used to confirm sales of the
Shares.
Reference made herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein as of the date of such Preliminary Prospectus
or Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed under the Securities Exchange Act of
1934 (the "Exchange Act") after the date of such Preliminary Prospectus or
Prospectus, as the case may be, and incorporated by reference in such
Preliminary Prospectus or Prospectus. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus.
(b) If the Effective Date is on or
before the date of this Agreement, (i) the Registration Statement conforms, and
the Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are first used
to confirm sales of the Shares, as the case may be, conform to the requirements
of the Securities Act and the Rules and Regulations, (ii) the Registration
Statement and any amendment thereto does not and will not, as of the applicable
effective date, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) the Prospectus and any amendment or
supplement thereto will not, as of the first date of its use to confirm sales
of the Shares, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. If the Effective Date is after the date of this
Agreement, (i) the Registration Statement and the Prospectus
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and any further amendments or supplements thereto will, when they become
effective or are first used to confirm sales of the Shares, as the case may be,
conform to the requirements of the Securities Act and the Rules and
Regulations, (ii) the Registration Statement and any amendment thereto will
not, as of the applicable effective date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) the
Prospectus and any amendment or supplement thereto will not, as of the date on
which the Prospectus and any amendment or supplement thereto is first used to
confirm sales of the Shares, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Notwithstanding the foregoing, the Company
makes no representation or warranty as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by you, or by any
of the Underwriters through you, specifically for inclusion therein. There is
no contract or document required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement or
to a document incorporated by reference into the Registration Statement which
is not described or filed as required.
(c) The Company is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, and is duly
registered and qualified to do business and is in good standing as a foreign
corporation in each jurisdiction, domestic or foreign, in which such
registration or qualification or good standing is required to conduct its
business (whether by reason of the ownership or leasing of property, the
conduct of its business or otherwise), except where the failure to so register
or qualify or be in good standing would not have a material adverse effect on
the business, financial condition or results of operations of the Company and
the Subsidiaries (as hereinafter defined), taken as a whole (a "Material
Adverse Effect").
(d) Schedule II hereto is a complete and
accurate schedule of (A) the names of all corporations, partnerships and joint
ventures (the "Subsidiaries") in which the Company has a majority equity
interest and which would be required to be listed on Exhibit 21 to an Annual
Report on Form 10-K of the Company if such report were dated and filed with the
Commission at the time of execution and delivery of this Agreement and (B)
information indicating the jurisdiction of incorporation of each such entity.
Each Subsidiary that is a corporation is duly organized, validly existing and
in good standing in the jurisdiction of its incorporation indicated on Schedule
II hereto, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus, and
is duly registered and qualified to do business and is in good standing as a
foreign corporation, in each jurisdiction, domestic or foreign, in which such
registration or qualification or good standing is required to conduct its
business (whether by reason of the ownership or leasing of property, the
conduct of its business or otherwise), except where the failure so to register
or qualify or be in good standing would not have a Material Adverse Effect.
Each Subsidiary that is not a corporation is duly organized, validly existing
and in good standing in the jurisdiction of its organization indicated on
Schedule II hereto, with full authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, and is duly
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registered or qualified to do business and is in good standing in each
jurisdiction, domestic or foreign, in which such registration or qualification
or good standing is required to conduct its business (whether by reason of the
ownership or leasing of property, the conduct of its business or otherwise),
except where the failure so to register or qualify or be in good standing would
not have a Material Adverse Effect. All the outstanding shares of capital
stock of each of the Subsidiaries that is a corporation have been duly
authorized and validly issued, are fully paid and nonassessable; all of the
outstanding partnership interests of each of the Subsidiaries that is a
partnership have been duly authorized by the partnership agreement of such
Subsidiary and are validly issued in accordance with such partnershp agreement
and are fully paid (to the extent required); and all of such shares of capital
stock or partnership interests are owned by the Company directly, or
indirectly through one of the other Subsidiaries, free and clear of any lien,
adverse claim, security interest or other encumbrance except as set forth on
Schedule II hereto.
(e) The authorized and outstanding
capital stock of the Company is as set forth in the Prospectus. All corporate
action required to be taken by the Company for the authorization, issuance,
sale, and delivery of the Shares has been validly and sufficiently taken. All
of the outstanding shares of Common Stock are, and the Shares, upon issuance
and delivery and payment therefor in the manner herein described, will be, duly
authorized, validly issued, fully paid, and nonassessable. Except as described
or referred to in the Prospectus: (i) there are no preemptive rights or other
rights to subscribe for or to purchase any shares of Common Stock, or any
restriction upon the voting or transfer of the Shares, pursuant to the
Company's certificate of incorporation, bylaws, or other governing documents or
any agreement or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them is bound; and (ii) there are no
outstanding options, warrants or rights to purchase any shares of capital stock
of the Company or any securities convertible into or exercisable or
exchangeable for any shares of the capital stock of the Company. Neither the
filing of the Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement give rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration of shares of
Common Stock or other securities of the Company. The Common Stock conforms to
the description thereof contained under the caption "Description of Capital
Stock" in the Prospectus.
(f) The Company has all requisite
corporate power and authority to execute and deliver this Agreement and to
incur and perform each of its obligations provided herein. This Agreement
has been duly and validly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except (A) as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other laws relating to or affecting creditors' rights
generally, (B) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which any proceedings therefor may be
brought and (C) as rights to indemnity and contribution hereunder may be
limited by applicable securities laws or the policies underlying such laws.
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(g) Neither the Company nor any of the
Subsidiaries is in violation of its certificate or articles of incorporation or
by-laws or other organizational documents. Neither the Company nor any of the
Subsidiaries is in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any judgment, order or decree of any court or governmental
agency or body or of any arbitrator having jurisdiction over the Company or any
of the Subsidiaries, or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, which
violations or defaults would, either individually or in the aggregate, have a
Material Adverse Effect.
(h) Neither the issuance and sale of the
Shares, the execution, delivery or performance of this Agreement by the
Company, nor the consummation by the Company of the transactions contemplated
hereby (A) requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except such as may be required
under the Securities Act or the Rules and Regulations or for the compliance
with the securities or the Blue Sky laws of various jurisdictions), or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate or articles of incorporation or bylaws or
other organizational documents of the Company or any of the Subsidiaries or (B)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any of them
may be bound or to which any of the property or assets of any of them is
subject which conflict, default, violation, creation or imposition would, for
purposes of this clause (B) only, either individually or in the aggregate, have
a Material Adverse Effect.
(i) There is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company or the Subsidiaries,
threatened against the Company or the Subsidiaries which, considered singly or
in the aggregate, may reasonably be expected to result in any material adverse
change in the business, financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole (a "Material Adverse Change"),
or may reasonably be expected to materially adversely affect the consummation
of this Agreement or the issuance of the Shares.
(j) The historical consolidated
financial statements of the Company included or incorporated by reference in
the Preliminary Prospectus and the Prospectus present fairly the consolidated
financial position, the results of operations and the cash flows of the Company
and the Subsidiaries at the respective dates and for the respective periods to
which they apply; and such financial statements and related schedules and notes
have been prepared in conformity with generally accepted accounting principles
consistently applied throughout such periods, except as disclosed
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therein. The information (other than pro forma information) set forth under
the caption "Selected Consolidated Financial Data" in the Preliminary
Prospectus and the Prospectus is fairly stated in all material respects in
relation to the financial statements from which it has been derived. The pro
forma financial information set forth in the Preliminary Prospectus and the
Prospectus complies in all material respects with the applicable accounting
requirements of Article 11 of Regulation S-X promulgated by the Commission.
(k) Arthur Andersen LLP, who have
certified the financial statements included in the Preliminary Prospectus and
the Prospectus (or any amendment or supplement thereto), are independent public
accountants within the meaning of the Securities Act and the Rules and
Regulations thereunder.
(l) Since the respective dates as of
which information is given in the Prospectus, except as otherwise stated
therein, (A) there has been no Material Adverse Change and no development that
could reasonably be expected to have a Material Adverse Change, (B) there have
not been any transactions entered into by the Company or any of the
Subsidiaries, other than those in the ordinary course of business, which are
material to the Company and its Subsidiaries taken as a whole, (C) there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock and (D) there has not been any
material change in the capital stock, or material increase in the long-term
debt, of the Company and the Subsidiaries taken as a whole.
(m) Each of the Company and the
Subsidiaries has such material permits, licenses, franchises and authorizations
of governmental or regulatory authorities ("permits") as are necessary to own
its respective properties and to conduct its business in the manner described
in the Prospectus, subject in each case to such qualifications as may be set
forth in the Prospectus and except where the failure to have such permits would
not have a Material Adverse Effect; each of the Company and the Subsidiaries
has fulfilled and performed all its material obligations with respect to such
permits and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such permits, subject in
each case to such qualifications as may be set forth in the Prospectus and
except where the failure so to fulfill or perform or the occurrence of such an
event would not have a Material Adverse Effect; and except as described in the
Prospectus, none of such permits contains any restriction that is materially
burdensome to the Company and the Subsidiaries taken as a whole.
(n) The Company is not an "investment
company", or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act"), and
is not subject to regulation as an "investment company" under the 1940 Act.
(o) The Company and each of the
Subsidiaries have filed all tax returns required to be filed (taking into
consideration any extension periods), which returns are complete and correct in
all material respects, and neither the Company nor any Subsidiary is in
default in the
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payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto (taking into consideration any extension
periods), except to the extent the failure to file such return or pay such
tax would not have a Material Adverse Effect.
(p) The Company and the Subsidiaries
have good and marketable title to all properties owned by them, in each case
free and clear of all liens, encumbrances and defects except (a) as do not
materially interfere with the use made and proposed to be made of such
properties, (b) as described in the Prospectus or (c) where the failure to have
good title to such properties would not have a Material Adverse Effect.
(q) The Company has complied and will
comply with all of the provisions of Florida H.B. 1771, codified as Section
526.075 of the Florida statutes, and all regulations promulgated thereunder
relating to issuers doing business with Cuba.
(r) The outstanding shares of Common
Stock are, and the Shares will be, listed on the New York Stock Exchange (the
"NYSE").
(s) The Company has not taken and will
not take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of shares of the Common Stock to
facilitate the sale or resale of the Shares.
(t) The conditions for use of Form S-3,
set forth in the General Instructions thereto, have been satisfied.
(u) The documents incorporated by
reference into the Registration Statement, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act and the Rules and Regulations thereunder, and any document
hereafter filed that is incorporated by reference into the Registration
Statement will, when it is filed with the Commission, comply in all material
respects with the requirements of the Exchange Act and the Rules and
Regulations thereunder, and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(v) Any certificate signed by any
officer of the Company and delivered, pursuant to this Agreement or in
connection with the payment of the purchase price and delivery of the
certificates for the Shares, to the Underwriters or counsel to the Underwriters
shall be deemed a representation and warranty by the Company to each of the
Underwriters as to the matters covered thereby.
2. Purchase of the Shares by the Underwriters. (a) Subject
to the terms and conditions and upon the basis of the representations and
warranties herein set forth, the Company agrees to issue and sell to the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company, at a price of $______ per Share, the number of
Firm Shares
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set forth opposite such Underwriter's name in Schedule I hereto. The
Underwriters agree to offer the Firm Shares to the public as set forth in
the Prospectus.
(b) The Company hereby grants to the Underwriters
an option to purchase from the Company, solely for the purpose of covering
overallotments in the sale of Firm Shares, all or any portion of the Option
Shares for a period of 30 days from the date hereof at the purchase price per
Share set forth above. Option Shares shall be purchased from the Company,
severally and not jointly, for the accounts of the several Underwriters in
proportion to the aggregate number of Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto, except that the respective purchase
obligations of each Underwriter shall be adjusted by the Representatives so
that no Underwriter shall be obligated to purchase fractional Option Shares.
3. Delivery of and Payment for Shares. Delivery of
certificates for the Firm Shares and certificates for the Option Shares, if the
option to purchase the same is exercised on or before the third Business Day
(as defined in Section 14 hereof) prior to the First Closing Date, and payments
therefor shall be made at the offices of Lehman Brothers Inc., New York, New
York (or such other place as may be mutually agreed upon), at 10:00 a.m., New
York City time, on ___________, 1995 or on such other date as shall be
determined by you and the Company (the "First Closing Date").
The option to purchase Option Shares granted in Section 2
hereof may be exercised during the term thereof by written notice to the
Company from the Representatives. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the time
and date, not earlier than either the First Closing Date or the second Business
Day after the day on which the option shall have been exercised, whichever is
later, nor later than the third Business Day after the date of such exercise,
as determined by the Representatives, when the Option Shares are to be
delivered (the "Second Closing Date"). Delivery and payment for such Option
Shares shall be made at the offices set forth above for delivery and payment of
the Firm Shares. The First Closing Date and the Second Closing Date are
sometimes herein individually called the "Closing Date" and collectively called
the "Closing Dates."
Delivery of certificates for Shares being sold by the Company
shall be made by or on behalf of the Company to you, for the respective
accounts of the Underwriters, against payment of the purchase price therefor by
certified or official bank check payable in New York Clearing House (next day)
funds to the order of the Company. The certificates for the Shares shall be
registered in such names and denominations as you shall have requested at least
two full Business Days prior to the applicable Closing Date, and shall be made
available for checking and packaging at such location in New York, New York, as
may be designated by you at least one full Business Day before such Closing
Date. Time shall be of the essence, and delivery of certificates for the
Shares at the time and place specified in this Agreement is a further condition
to the obligations of each Underwriter.
4. Covenants of the Company. The Company covenants and
agrees with each Underwriter that:
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(a) If the Effective Date is on or
before the date of this Agreement, the Company shall comply with the provisions
of and make all requisite filings with the Commission pursuant to Rule 424(b)
not later than the Commission's close of business on the second Business Day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) of the Rules and
Regulations. The Company shall advise the Representatives, promptly after it
receives notice thereof, of the time when, if the Effective Date is on or
before the date of this Agreement, any amendment to the Registration Statement
or, if the Effective Date is after the date of this Agreement, the Registration
Statement or any amendment thereto, has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed. The
Company shall notify you promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for additional information; and the Company shall prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or the Prospectus which, in your opinion, may be
reasonably necessary or advisable in connection with the distribution of the
Shares. The Company shall advise you promptly of the issuance by the
Commission of any stop order or other order suspending the effectiveness of the
Registration Statement, suspending or preventing the use of any Preliminary
Prospectus or the Prospectus, or of the institution of any proceedings for any
such purpose; and the Company shall use its reasonable efforts to prevent the
issuance of any stop order or other such order and, should a stop order or
other such order be issued, to obtain as soon as possible the lifting thereof.
(b) The Company shall furnish to each of
the Representatives and to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith, and
shall furnish to the Underwriters such number of conformed copies of the
Registration Statement, as originally filed and each amendment thereto
(excluding exhibits other than this Agreement), the Prospectus and all
amendments and supplements to any of such documents (including any document
filed under the Exchange Act and deemed to be incorporated by reference in the
Preliminary Prospectus or Prospectus), in each case as soon as available and in
such quantities as the Representatives may from time to time reasonably request.
(c) Within the time during which the
Prospectus relating to the Shares is required to be delivered under the
Securities Act, the Company shall comply with all requirements imposed upon it
by the Securities Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as is necessary to permit
the continuance of sales of the Shares as contemplated by the provisions hereof
and by the Prospectus. If during such period any event occurs as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend the Registration
Statement or supplement the Prospectus or file any document to comply with the
Securities Act, the Company shall promptly notify you and, subject to Section
4(d) hereof, shall amend the Registration Statement or supplement the
Prospectus or file
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any document (at the expense of the Company) so as to correct such statement
or omission or to effect such compliance.
(d) Prior to filing any amendment to the
Registration Statement or supplement to the Prospectus before the termination
of the offering of the Shares by the Underwriters, the Company shall furnish a
copy thereof to the Underwriters and counsel to the Underwriters, and will not
file or publish any such amendment or supplement to which the Underwriters
shall reasonably object by notice to the Company after a reasonable period to
review.
(e) The Company shall use reasonable
efforts to qualify the Shares for offer and sale under the securities laws of
such states and other jurisdictions in the United States as the Underwriters
shall reasonably request and maintain such qualifications for so long as may
be necessary for the distribution of the Shares; provided that, notwithstanding
the foregoing, the Company shall not, with respect to any such jurisdiction, be
required to qualify as a foreign corporation, to file a general consent to
service of process or to take any other action that would subject it to service
of process in suits other than those arising out of the offering of the Shares.
(f) The Company shall advise the
Underwriters promptly and, if requested by any of the Underwriters, shall
confirm such advice in writing, of the issuance by any state securities
commission or other regulatory body of any stop order suspending the
qualification or exemption from qualification of the Shares for offering or
sale in any jurisdiction, or the initiation of any proceeding for such purpose
by any state securities commission or other regulatory authority. The Company
shall use reasonable efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of the Shares under any state
securities or Blue Sky laws, and if at any time any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption of the Shares under any state securities or Blue Sky laws, the
Company shall use reasonable efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(g) The Company shall make generally
available to its security holders (and shall deliver to the Representatives),
in the manner contemplated by Rule 158(b) under the Securities Act or
otherwise, as soon as practicable but in any event not later than 45 days after
the end of its fiscal quarter in which the first anniversary date of the
Effective Date occurs (or not later than 90 days after the end of such fiscal
quarter if such fiscal quarter is the last fiscal quarter of the fiscal year),
an earnings statement satisfying the requirements of Section 11(a) of the
Securities Act and covering a period of at least 12 consecutive months
beginning after the Effective Date.
(h) The proceeds of the sale of the
Shares will be applied as set forth in the Prospectus.
(i) For a period of three years after
the date hereof, the Company will furnish to you, as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders for
such year; and during such period the Company will furnish to you (i) as soon
as
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available, a copy of each report (other than reports on Form 11-K), excluding
exhibits, unless requested by you, and definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to the
Company's stockholders and (ii) from time to time, such other public
information concerning the Company as you may reasonably request.
(j) The Company shall not, without the
prior written consent of Lehman Brothers Inc., during the 90 days following the
date of the Prospectus, offer for sale, sell, or otherwise dispose of any
shares of the Common Stock or any securities convertible into, or exercisable
or exchangeable for, shares of Common Stock, or sell or grant options, rights,
or warrants with respect to any shares of Common Stock, other than (i) pursuant
to existing benefit plans of the Company or its subsidiaries and (ii) in
accordance with this Agreement or as expressly contemplated in the Prospectus.
(k) Whether or not this Agreement
becomes effective or is terminated or the sale of the Shares to the
Underwriters is consummated, the Company shall pay or cause to be paid (A) all
expenses (including stock transfer taxes) incurred in connection
with the issuance of the Shares and the delivery to the several Underwriters of
the Shares, (B) all fees and expenses (including, without limitation, fees and
expenses of the Company's accountants and counsel, but excluding fees and
expenses of counsel to the Underwriters) in connection with the preparation,
printing, filing, delivery and shipping of the Registration Statement
(including the financial statements therein and all amendments and exhibits
thereto), each Preliminary Prospectus, and the Prospectus, as amended or
supplemented, and the reproduction, delivery, and shipping of this Agreement
and other underwriting documents, including, but not limited to, underwriters'
questionnaires, underwriters' powers of attorney, blue sky surveys, agreements
among underwriters and selected dealer agreements, (C) all reasonable fees and
expenses incurred in connection with the qualification of the Shares under
state securities laws as provided in Section 4(c) hereof, including all filing
fees and disbursements and the reasonable fees of counsel to the Underwriters
incurred in connection therewith, (D) the filing fee payable to the National
Association of Securities Dealers, Inc., (E) any applicable fees relating to
the listing of the Shares on the NYSE, (F) the cost of printing certificates
representing the Shares, (G) the cost and charges of any transfer agent or
registrar, and (H) all other costs and expenses incident to the performance of
the Company's obligations hereunder for which provision is not otherwise made
in this Section 4(k). It is understood, however, that, except as is provided in
this Section 4(k), in Section 6 and Section 8 hereof, the Underwriters shall
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
(l) If this Agreement is terminated by
the Company pursuant to Section 8(a) hereof, or by the Underwriters pursuant to
Section 8(b)(i) or 8(b)(ii) hereof (but only with regard to the failure of
conditions set out in Sections 5(a) through 5(i) hereof), the Company will
reimburse the Underwriters upon demand for all reasonable out-of-pocket
expenses (including the reasonable fees and disbursements of counsel to the
Underwriters) that shall have been incurred by them in connection with the
proposed issuance and sale of the Shares.
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(m) Until termination of the offering of
the Shares, the Company will timely file all documents and any amendments to
previously filed documents required to be filed by it pursuant to Section 13,
14 or 15(d) of the Exchange Act.
5. Conditions to Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy,
as of the date hereof and each Closing Date (as if made on each Closing Date),
of the representations and warranties of the Company contained herein, to
performance by the Company of its obligations hereunder and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been filed
with the Commission in a timely fashion in accordance with Section 4(a) hereof,
the Registration Statement and all post-effective amendments to the
Registration Statement shall have become effective, all filings required by
Rule 424 and Rule 430A of the Rules and Regulations shall have been made and no
such filings shall have been made without the consent of the Representatives,
which consent shall not have been unreasonably withheld; no stop order
suspending the effectiveness of the Registration Statement or any amendment or
supplement thereto or suspending the qualification of the Shares for offering
or sale shall have been issued; no proceedings for the issuance of any such
order shall have been initiated or threatened; and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been disclosed to you and
complied with to your reasonble satisfaction.
(b) No Underwriter shall have been
advised by the Company or shall have discovered and disclosed to the Company on
or prior to such Closing Date that the Registration Statement or the Prospectus
or any amendment or supplement thereto contains an untrue statement of a fact
which, in the reasonable opinion of the Underwriters, is material or omits to
state a fact which, in the reasonable opinion of such Underwriters, is
material, and is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and the Company shall
not have prepared and distributed any amendment to the Registration Statement
or supplement to the Prospectus without prior review by the Underwriters
pursuant to Section 4(d) herein.
(c) On each Closing Date, the Company
shall have furnished to you the opinion of Fulbright & Jaworski L.L.P., counsel
to the Company, addressed to you and dated such Closing Date, substantially in
the form attached as Exhibit A hereto.
(d) On or prior to such Closing Date,
you shall have received the opinion of Baker & Botts, L.L.P., counsel to the
Underwriters, addressed to you and dated such Closing Date, as to such matters
as you shall reasonably request, and such counsel shall have received such
documents and information as they request to enable them to pass upon such
matters.
(e) On each Closing Date there shall
have been furnished to you a certificate, dated such Closing Date and addressed
to you, signed by the Chief Executive Officer or Executive Vice President and
by the Chief Financial Officer, Treasurer or Controller of the
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Company, to the effect that: (i) the representations and warranties of the
Company contained in this Agreement are true and correct as if made at and as
of such Closing Date; (ii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be complied with or satisfied on or
before such Closing Date; (iii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding for that purpose
has been initiated or, to their knowledge, threatened; (iv) all filings
required to be made by the Company under Rule 424 and Rule 430A of the Rules
and Regulations under the Securities Act have been timely made; and (v) since
the Effective Date, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or the Prospectus which
has not been so set forth.
(f) On or prior to the date hereof,
the Company shall have furnished to you a letter substantially in the form of
Exhibit B hereto from each executive officer and each director of the Company
and from GulfMark International, Inc. and Lehman Brothers Holdings Inc.
(g) You shall have been furnished by the
Company such additional documents and certificates as you may reasonably
request.
(h) On each Closing Date you shall have
received a letter of Arthur Andersen LLP, dated such Closing Date and addressed
to you, confirming that they are independent certified public accountants
within the meaning of the Securities Act and the Rules and Regulations
thereunder, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus as of a date
not more than four days prior to the date of such letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by its letter delivered to you concurrently with the execution
of this Agreement, and confirming (except for changes as noted therein that
are reasonably acceptable to you) the conclusions and findings set forth in
such prior letter.
(i) Since the Effective Date, neither
the Company nor any of the Subsidiaries shall have sustained any loss by fire,
flood, accident or other calamity, or shall have become a party to or the
subject of any litigation, which is materially adverse to the Company and the
Subsidiaries taken as a whole, nor shall there have occurred a Material Adverse
Change, regardless of whether arising in the ordinary course of business, which
loss, litigation or change, in your judgment, shall render it impractical or
inadvisable to proceed with the payment for and delivery of the Shares.
All such opinions, certificates, letters and
documents shall be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and to counsel for the Underwriters.
The Company shall furnish to you conformed copies of all such opinions,
certificates, letters and other documents, and any additional documents and
certificates reasonably requested by you or counsel to the Underwriters, in
such number as you shall reasonably request. If any of the conditions
specified in this Section 5 shall not have been fulfilled when and as required
by this Agreement, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, each Closing Date, by
you. Any such cancellation shall be
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without liability of the Underwriters to the Company. Notice of such
cancellation shall be given to the Company in writing, or by telegraph or
telephone and confirmed in writing.
6. Indemnification. (a) The Company shall indemnify and
hold harmless each Underwriter from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which that
Underwriter may become subject, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement made by the Company in Section 1 hereof, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any blue sky application or other
document executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the shares under the securities
laws thereof (any such application, document or information being hereafter
referred to as a "Blue Sky Application"), or (iii) the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and shall promptly reimburse such Underwriter for any legal and
other expenses reasonably incurred, as such legal and other expenses are
incurred, by such Underwriter in investigating, defending or preparing to
defend against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided that the Company shall
not be liable in any such case to the extent, but only to the extent, that any
such loss, claim, damage, liability or action arises out of, or is based upon,
an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto, or any Blue Sky Application in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter specifically for inclusion therein; and provided further that this
indemnity agreement shall not inure to the benefit of any Underwriter on
account of any loss, claim, damage, liability or action arising from the sale
of Shares to any person by such Underwriter if such Underwriter failed to send
or give a copy of the Prospectus, as the same may be amended or supplemented,
to such person within the time required by the Securities Act, and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in the Preliminary Prospectus was remedied or
corrected in the Prospectus, unless such failure resulted from non-compliance
by the Company with Sections 4(b) and 4(c) hereof. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter.
(b) Each Underwriter, severally but not jointly,
shall indemnify and hold harmless the Company from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Company may become subject, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or any Blue Sky Application, or (ii) the omission or
alleged omission to state therein a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, but
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in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter specifically for inclusion therein, and shall reimburse the Company
for any legal and other expenses reasonably incurred, as such legal and other
expenses are incurred, by the Company in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company.
(c) Promptly after receipt by an indemnified party
under this Section 6 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the claim or the commencement of the action; provided that
the failure to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to an indemnified party
under this Section 6, except to the extent the indemnifying party was
materially prejudiced thereby, or from any liability which such indemnifying
party may have to an indemnified party otherwise than under Section 6. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 6 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided that the indemnified party shall have the
right to employ counsel to represent all indemnified parties who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by indemnified parties against the indemnifying party under this Section
6 if the employment of such counsel shall have been authorized in writing by
the indemnifying party in connection with the defense of such action or the
indemnifying party shall not have reasonably promptly employed counsel to have
charge of the defense of such action or counsel for any of the indemnified
parties shall have reasonably concluded that there may be defenses available to
the indemnified parties which are in conflict with those available to the
indemnifying party and, in that event, the fees and expenses of one firm of
separate counsel (in addition to the fees and expenses of local counsel) shall
be paid by the indemnifying party.
(d) If the indemnification provided for in this
Section 6 shall for any reason be unavailable to or insufficient to hold
harmless any indemnified party under Section 6(a) or 6(b) hereof in respect of
any loss, claim, damage or liability, or any action in respect thereof, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in
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such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Shares (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection
(d) were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purposes) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this subsection (d). The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 6(d) shall be
deemed to include, for purposes of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective obligations and not joint. Each party entitled
to contribution agrees that upon the service of the summons or other initial
legal process upon it in any action instituted against it in respect to which
contribution may be sought, it shall promptly give written notice of such
service to the party or parties from whom contribution may be sought, but the
omission so to notify such party or parties of any such service shall not
relieve the party from whom contribution may be sought for any obligation it
may have hereunder or otherwise, except to the extent such party was
materially prejudiced thereby.
(e) The obligations of the Company under this
Section 6 shall be in addition to any liability which the Company may otherwise
have, and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Securities Act; and
the obligations of the Underwriters under this Section 6 shall be in addition
to any liability that the respective Underwriters may otherwise have, and shall
extend, upon the same terms and conditions, to each director of the Company
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company), to each
officer
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of the Company who has signed the Registration Statement, and to each person,
if any, who controls the Company within the meaning of the Securities Act.
7. Substitution of Underwriters. If any Underwriter
defaults in its obligation to purchase the number of Firm Shares or Option
Shares, as the case may be, which it has agreed to purchase under this
Agreement, the nondefaulting Underwriters shall be obligated to purchase (in
case of either the Firm Shares or the Option Shares, in the respective
proportions which the number of Shares set forth opposite the name of each
nondefaulting Underwriter in Schedule I hereto bears to the total number of
Shares set forth opposite the names of all the remaining nondefaulting
Underwriters in Schedule I hereto) the Shares that the defaulting Underwriter
agreed but failed to purchase; except that the nondefaulting Underwriters shall
not be obligated to purchase any of the Shares if the total number of Shares
that the defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 9.09% of the total number of Shares, and any nondefaulting Underwriter
shall not be obligated to purchase more than 110% of the number of Firm Shares
set forth opposite its name in Schedule I hereto plus the total number of
Option Shares purchasable by it pursuant to the terms of Section 3. If the
foregoing maxima are exceeded, the nondefaulting Underwriters, and any other
underwriters satisfactory to you who so agree, shall have the right, but shall
not be obligated, to purchase (in such proportions as may be agreed upon among
them) all of the Shares. If the nondefaulting Underwriters or the other
underwriters satisfactory to you elect not to purchase the Shares that the
defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any nondefaulting
Underwriter or the Company except for the payment of expenses to be borne by
the Company and the Underwriters as provided in Section 4(k) hereof and the
indemnity and contribution agreements of the Company and the Underwriters
contained in Section 6 hereof. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
paragraph.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its default. If
the nondefaulting Underwriters or any other underwriters satisfactory to you
are obligated or agree to purchase the Shares of a defaulting Underwriter,
either you or the Company may postpone each Closing Date for up to seven full
Business Days in order to effect any changes that may be necessary in the
Registration Statement, the Prospectus, or in any other document or agreement,
and to file promptly any amendments or any supplements to the Registration
Statement or the Prospectus which in your opinion may thereby be made
necessary.
8. Effective Date and Termination.
(a) This Agreement shall become
effective (i) if the Effective Date is on or before the date of this Agreement,
at 11:00 a.m., New York City time, on the first full Business Day following the
date hereof, (ii) if the Effective Date is after the date of this Agreement, at
11:00 a.m., New York City time, on the first full Business Day following the
Effective Date, or (iii) at such earlier time after the Registration Statement
becomes effective under the Securities Act as you in your discretion shall
first release the Firm Shares for sale to the public. You shall notify the
Company immediately after you have taken any action that causes this Agreement
to become effective. Until this Agreement is effective, it may be terminated
by the Company by giving notice,
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as hereinafter provided, to you, or by you by giving notice, as hereinafter
provided, to the Company, except that the provisions of Section 4(k) and
Section 6 shall at all times be effective. For purposes of this Agreement, the
release of the Firm Shares for sale to the public shall be deemed to have been
made when you release, by telegram or otherwise, firm offers of the Firm Shares
to securities dealers or release for publication a newspaper advertisement
relating to the Firm Shares, whichever occurs first.
(b) The Underwriters, in their absolute
discretion, may terminate this Agreement by notice given to and received by the
Company at any time before payment is made to the Company on each Closing Date,
if prior to that time, (i) the Company shall have failed, refused or been
unable, at or prior to such Closing Date, to perform any agreement on its part
to be performed hereunder on or prior to such date, (ii) any other condition of
the Underwriters' obligation hereunder is not fulfilled, (iii) trading in
securities generally on the NYSE shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market by the
Commission or such exchange or other regulatory body or governmental authority
having jurisdiction, (iv) a banking moratorium is declared by either Federal,
New York or Texas authorities, (v) the United States becomes engaged in
hostilities or there is an escalation of hostilities involving the United
States or there is a declaration of a national emergency or war by the United
States, or (vi) there shall have been such a material adverse change in general
economic, political or financial conditions, or the effect of international
conditions on the financial markets in the United States shall be such, as to,
in the judgment of the Underwriters, make it inadvisable or impracticable to
proceed with the offering or delivery of the Shares.
(c) If this Agreement is terminated
pursuant to this Section 8, such termination shall be without liability of any
party to any other party except as provided in Section 4(k) and Section 6
hereof.
9. Notices. Any notice or notification in any form to be
given hereunder shall be in writing and shall be delivered in person or sent by
telex, telephone or facsimile transmission (but in the case of a notification
by telephone, with subsequent confirmation by letter, telegraph or telex). Any
notice or notification to the Company shall be addressed to Energy Ventures,
Inc., 5 Post Oak Park, Suite 1760, Houston, Texas 77027, Attention:
President, with copies to Fulbright & Jaworski L.L.P., 1301 McKinney Street,
Houston, Texas 77010-3095, Attention: Curtis W. Huff. Any notice or
notification to the Underwriters shall be addressed to Lehman Brothers Inc., 3
World Financial Center, New York, New York 10285, Attention: Investment Banking
Group. Any notice or notification shall take effect at the time of receipt.
10. Information Furnished by Underwriters. The
Underwriters severally confirm that the statements set forth in the last
paragraph on the cover page in the Prospectus, the stabilization paragraph on
page 2 of the Prospectus, the information appearing in the list of names of,
and number of Shares to be purchased by, each of the Underwriters, under the
caption "Underwriting" in the Prospectus, and the statements in the second and
sixth paragraphs next following such list, constitute the written information
furnished by or on behalf of any Underwriter referred to in paragraph (b) of
Section 1 hereof and in paragraphs (a) and (b) of Section 6 hereof.
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11. Survival of Certain Provisions. The agreements
contained in Section 6 and the representations, warranties and agreements of
the Company in Sections 1 and 4 shall survive the delivery of the Shares and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any indemnified party.
12. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company, any officer, director or controlling person referred to in Section
6(e) hereof and their respective successors. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 12, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. Definition of "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the NYSE is open for trading.
15. Submission to Jurisdiction. The Company hereby
irrevocably and unconditionally submits for itself and its property in any
legal action or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
for any thereof.
16. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between
the Company and each of the Underwriters, please sign and return a counterpart
hereof, whereupon this instrument will become a binding agreement among the
Company and you in accordance with its terms.
ENERGY VENTURES, INC.
By: ______________________________
Name: ______________________________
Title: ______________________________
Accepted:
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
For themselves and as Representatives
of the Several Underwriters named in
Schedule I hereto.
BY: LEHMAN BROTHERS INC.
By: _______________________________________
Authorized Signatory
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SCHEDULE I
Number of
Firm Shares
Underwriters to be Purchased
------------ ---------------
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Donaldson, Lufkin & Jenrette Securities Corporation . . . . . . . . . . . . . . .
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,600,000
============
22
SCHEDULE II
SUBSIDIARIES OF ENERGY VENTURES, INC.
Significant Jurisdiction of
Name of Subsidiary Subsidiaries Organization
AWI Drilling & Workover, Inc. No Louisiana
BakTexas (1) No Azerbaijan
Bay Drilling Corporation No Louisiana
Channelview Real Property, Inc. No Delaware
Delta Crewboats, Inc. No Louisiana
Energy Ventures Foreign Sales Corporation No Barbados
Energy Ventures (Cyprus) Limited No Cyprus
Energy Ventures Far East Limited No Hong Kong
Energy Ventures International, Inc. No Cayman Islands
Energy Ventures Mid East, Inc. No Cayman Islands
ENGEMAQ No Brazil
ENGY, Inc. No Delaware
EV Offshore, Inc. No Louisiana
EVI - Highland Pump Company Yes Delaware
EVI International, Inc. No Delaware
Grant Prideco, Inc. Yes Delaware
Grant Tubular Finishing Ltd. No Hungary
Grant T.F. de Mexico S.A. de C.V.(2) No Mexico
Highland/Corod Inc. No Alberta
----------------------------------
(1) 51% owned.
(2) Excludes directors qualifying shares.
23
Significant Jurisdiction of
Name of Subsidiary Subsidiaries Organization
Highland-Shengli Machinery Company No China
Limited, Dongying City (4)
Mallard Bay Drilling, Inc. Yes Louisiana
Mallard Bay Drilling (Nigeria) Limited(4) No Nigeria
Mallard Bay Drilling, Inc., Suits Drilling No Texas
Company, et al. (Partnership)(5)
PEPESA(6) No Peru
Prideco de Venezuela, S.A.(7) No Venezuela
Prideco Europe Limited No Scotland
Prideco Holdings, Inc. No Delaware
Prideco, Inc. Yes Texas
Production Oil Tools, Inc. No Wyoming
Suits Peru LLC(7) No Oklahoma
----------------------------------
(4) 60% owned.
(5) 50% owned, but Mallard Bay Drilling, Inc. is entitled to
certain preferential distributions in excess of 50%.
(6) Wholly-owned by Suits Peru LLC
(7) 49% owned.
24
EXHIBIT A
FORM OF OPINION OF FULBRIGHT & JAWORSKI L.L.P.
(i) The Company is a corporation duly
incorporated and validly existing in good standing under the laws of the State
of Delaware with full corporate power and authority to own or lease and operate
its properties and to conduct its business as described in the Prospectus.
(ii) Each of the Subsidiaries designated
as a "Significant Subsidiary" on Schedule II hereto (a "Significant Subsidiary"
and collectively the "Significant Subsidiaries") is a corporation duly
incorporated and validly existing in good standing under the laws of the
jurisdiction of its organization, with due corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus; and all the outstanding shares of capital stock of each of
the Significant Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are held of record by the Company directly,
or indirectly through one of the other Significant Subsidiaries.
(iii) The Company's authorized
capitalization is as set forth in the Prospectus. The Company has all
requisite corporate power and authority to issue, sell, and deliver the Shares
in accordance with and upon the terms and conditions set forth in this
Agreement. The issuance of the Shares has been duly and validly authorized
and, when issued and paid for by the several Underwriters in accordance with
the terms of this Agreement, will be fully paid and nonassessable. No holder
of capital stock of the Company has any preferential or preemptive right to
purchase or acquire any of the Shares under the General Corporation Law of the
State of Delaware or the Company's certificate of incorporation or bylaws or,
to such counsel's knowledge, under any agreement to which the Company is a
party that has been identified to such counsel by the Company as being material
to the Company and the Subsidiaries taken as a whole. To the knowledge of such
counsel, except as disclosed in the Prospectus, there are no outstanding
options or warrants to purchase any shares of the capital stock of the Company
or securities convertible into or exercisable or exchangeable for any shares of
the capital stock of the Company. The Common Stock conforms in all material
respects to the description thereof contained in the Prospectus under the
caption "Description of Capital Stock."
(iv) To such counsel's knowledge, neither
the filing of the Registration Statement nor the offering or sale of the Shares
as contemplated by this Agreement gives rise to any right, other than those
which have been waived or satisfied, for or relating to the registration of any
shares of Common Stock or other securities of the Company.
(v) Neither the execution, delivery or
performance of this Agreement nor the offer, sale or delivery of the Shares
hereunder will violate, conflict with, or constitute a breach of or default
under, (A) the certificate of incorporation or bylaws of the Company, (B) any
agreement, indenture, or other instrument relating to the borrowing of money
known to such counsel to which the Company or any Significant Subsidiary is a
party or by which the Company or any Significant Subsidiary is bound, or any
other agreement identified to such counsel by the Company
25
as being material to the Company and the Subsidiaries taken as a whole, or (C)
(except with respect to state securities or blue sky laws, as to which such
counsel need express no opinion, and except with respect to the federal
securities laws other than as stated in such counsel's opinion letter) any law,
administrative regulation, or court or governmental decree known to such counsel
to be applicable to the Company or any Significant Subsidiary.
(vi) No consent, approval, or
authorization of any federal or state governmental authority, agency or body
having jurisdiction over the Company is required to be obtained by the Company
in connection with the consummation of the transactions contemplated in this
Agreement, except such as may be required under the Securities Act, and except
as may be required under state securities or blue sky laws (with respect to
which such counsel need express no opinion).
(vii) The Company has corporate power and
authority to enter into this Agreement and to issue, sell and deliver the
Shares to you as provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company.
(viii) The information contained in the
Prospectus under the caption "Description of Capital Stock" to the extent it
purports to summarize the provisions of the documents or agreements
specifically referred to therein or matters of law or legal conclusions is true
and correct in all material respects.
(ix) The Company is not an "investment
company" within the meaning of the 1940 Act.
(x) To the knowledge of such counsel,
there are no legal or governmental proceedings pending or threatened to which
the Company or any of the Significant Subsidiaries is a party or to which the
business or property of the Company or any of the Significant Subsidiaries is
subject that are required to be disclosed in the Registration Statement or the
Prospectus and that are not so disclosed.
(xi) The Registration Statement has
become effective under the Securities Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for such purpose have been instituted or are
pending or threatened. Except as to (a) the financial statements or other
financial or statistical data contained in or incorporated by reference into the
Registration Statement or the Prospectus or (b) any information furnished in
writing by the Underwriters to the Company specifically for use therein, as to
which such counsel need not express any opinion, the Registration Statement and
the Prospectus comply as to form in all material respects with the requirements
of the Securities Act and the rules and regulations thereunder. Except as to
the financial statements or other financial or statistical data contained
therein, as to which such counsel need not express any opinion, each document
incorporated by reference in the Registration Statement as filed under the
Exchange Act complied when so filed as to form in all material respects with the
applicable requirements of the Exchange Act and the rules and regulations
thereunder. There are no contracts or other documents
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26
known to such counsel that are required to be filed as exhibits to the
Registration Statement other than those filed as exhibits thereto.
(xii) The statements in the Registration
Statement and the Prospectus, insofar as they constitute statements of law or
legal conclusions with regard to descriptions of contracts, agreements, or
other documents, are fair and accurate in all material respects.
(xiii) The Shares have been approved for
listing on the NYSE, subject only to official notice of issuance.
The foregoing opinions shall cover the laws of the United
States, the State of Texas, the State of Louisiana and the State of New York
and the corporate laws of the State of Delaware. In rendering such opinions,
such counsel may rely, to the extent it considers such reliance proper, (A)
upon an opinion or opinions, each dated each Closing Date, of other counsel
retained by it or the Company as to the laws of the State of Louisiana or any
other jurisdiction, provided that each such local counsel is acceptable to you
and a copy of each such opinion is delivered to you and (B) upon certificates
and representations of officers of the Company and the Subsidiaries and of
government officials. Such opinions may also be subject to customary
qualifications and limitations.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and representatives of the Company,
counsel to the Underwriters, representatives of the independent public
accountants of the Company, and representatives of the Underwriters at which
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except
to the extent stated above in its opinion), on the basis of the foregoing
(relying as to materiality to a large extent upon the statements of officers
and other representatives of the Company), no facts have come to the attention
of such counsel that lead it to believe that the Registration Statement, as of
its effective date, contained any untrue statement of a material fact
the attention of such counsel that lead it to believe that the Prospectus, as
of its issue date or as of the applicable Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; it being understood that such counsel need express
no opinion as to the financial statements or other statistical or financial
data included in the Registration Statement or the Prospectus.
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27
EXHIBIT B
[Letterhead of officer, director or major stockholder of
Energy Ventures, Inc.]
Energy Ventures, Inc.
Public Offering of Common Stock
September ___, 1995
LEHMAN BROTHERS INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
As Representatives of the Several
Underwriters named in Schedule I hereto
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement") among Energy
Ventures, Inc., a Delaware corporation (the "Company"), and each of you as
representatives of a group of underwriters named therein, relating to an
underwritten public offering of common stock, par value $1.00 per share (the
"Common Stock"), of the Company.
To induce you and the other underwriters to enter into the
Underwriting Agreement, the undersigned agrees that it will not, without the
prior written consent of Lehman Brothers Inc., during the 90 days following the
date of the Prospectus (as defined in the Underwriting Agreement), offer for
sale, sell or otherwise dispose of, directly or indirectly, any shares of
Common Stock beneficially owned by the undersigned or any securities
convertible into, or exercisable or exchangeable for, shares of Common Stock.
If for any reason the Underwriting Agreement is terminated
before the First Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major stockholder]
[Name and address of officer, director or major
stockholder]